No, They Don't, Mr. Pruitt

by Robert Glicksman

March 02, 2017

In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the environment. 

Of course, well-constructed regulations will also create certainty, and regulated entities typically prefer such certainty so they are able to understand their responsibilities and plan for compliance. Sometimes, they are even willing to support tougher regulations (especially if there is only one set to worry about) instead of having to accommodate multiple sets of rules. 

Regulations can even benefit the regulated community in many ways. For example, agency enforcement of regulations can level the playing field so that those who make good-faith efforts to comply are not disadvantaged in the marketplace vis-à-vis less scrupulous competitors who seek to avoid making the investments needed to comply. Regulatory obligations also can spur innovation and induce the development of new technologies. Some of these allow new businesses to flourish as they market the technologies that facilitate regulatory compliance. At other times, they generate compliance cost savings that allow businesses to operate more efficiently. 

Notwithstanding these benefits, regulations are not adopted primarily for "those that they regulate." Rather, the main constituency of standards and safeguards is the public, whose health, safety, financial security, workplace security, and other critical needs it is the purpose of regulation to supply and protect. If Pruitt has not already done so, perhaps he should read the provisions that describe the purposes of the Clean Air Act, one of the key statutes he is tasked with implementing. Congress passed the act in 1970, by overwhelming bipartisan majorities, "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." Nothing in the statute prioritizes the needs of the regulated community at the expense of the public interest.  

The purpose provisions of the Clean Water Act are similarly instructive. They state that the act's goal is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Additional goals include achieving, "wherever attainable,  . . . water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water," and prohibiting "the discharge of toxic pollutants in toxic amounts." Again, the statute says nothing about elevating regulatory certainty to the top of the hierarchy of goals. 

It would perhaps also be instructive if Pruitt were to read the message that Republican President Richard Nixon sent to Congress to accompany the Reorganization Plan he signed to create the very agency that Pruitt now leads. Nixon enunciated these three overarching functions for the new agency: 

  • The establishment and enforcement of environmental protection standards consistent with national environmental goals.
  • The conduct of research on the adverse effects of pollution and on methods and equipment for controlling it, the gathering of information on pollution, and the use of this information in strengthening environmental protection programs and recommending policy changes.
  • Assisting others, through grants, technical assistance and other means in arresting pollution of the environment . . . . 

Nixon left no uncertainty about what EPA's principal functions would be. 

It's telling that Pruitt describes his mission as providing certainty to industry, because it betrays his – and almost certainly his boss's – view that the function of government is to be a servant of business interests, focused on facilitating profit. That's not at all what government should be about. Government is a servant of the people and their interests, which sometimes coincide with the profit motive of businesses, and sometimes do not. For validation of that notion, Pruitt might consult the Preamble to the Constitution, which quite clearly describes the mission: to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. No mention is to be found of protecting polluters and the manufacturers of unsafe products.

In light of Pruitt's fundamental misconception about or disagreement with the essential mission of the agency he has been selected to lead, it would not be surprising if many Americans hope to see his tenure as EPA Administrator turn out to be a very brief one. Others would likely conclude that these hopes are "justified" in light of the considerable damage Pruitt's policies may do to the state of the nation's health and environment.

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Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

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